CMA/1634/2004 of Mr.Mohd Sajid Hussin Vs Mr.Ghouse Mohinuddin on 31 December 2014

HONOURABLE SRI JUSTICE S.RAVI KUMARCIVIL MISCELLANEOUS APPEAL No.1634 OF 2004

--Dated 31122014

Between:Mohd. Sajid Hussain.

...Appellant.

And:

Ghouse Mohinuddin and another.

…Respondents.

HONOURABLE SRI JUSTICE S.RAVI KUMARCIVIL MISCELLANEOUS APPEAL No.1634 OF 2004JUDGMENT:

This appeal is against the order dated 21-11-2001 inW.C.No.19 of 2000 on the file of Assistant Commissionerof Labour, Nizamabad.

Brief facts leading to this appeal are as follows:

Appellant herein filed application beforeCommissioner of Workmen Compensation, Nizamabadcontending that he was a labour on lorry bearing No.APJ-8979 belonging to first respondent herein which is insuredwith second respondent and drawing a salary ofRs.3,000/- per month and that on 25-3-1998 while he wastravelling in the lorry as labour, during course ofemployment, due to the negligent driving of driver, thelorry went off the road and turned turtle, as a result, hesustained fracture to both legs and ribs and sustainedmultiple grievous injuries and that he was shifted toGovernment Hospital, Bodhan, where he was treated as aimpatient and on account of accident, he is unable to doany work including labour work and therefore, entitled forcompensation of Rs.3,00,000/- and lower authoritygranted Rs.63,847/-by taking disability at 30%. Aggrievedby the said order, claimant preferred present appeal.

Heard arguments.

Advocate for appellant submitted that AssistantCommissioner of Labour acted contrary to law and failedto take loss of earning capacity at 100% as there wascomplete functional disability. He further submitted thatAssistant Commissioner of Labour wrongly reducedwages of the workman without any contra evidence. Hefurther submitted that Assistant Commissioner of Labourerred in not awarding any interest on the compensationand for these reasons; the order of the AssistantCommissioner is to be modified.

On the other hand, advocate for InsuranceCompany submitted that though advocate for appellantcontended that claimant was getting a monthly salary ofRs.3,000/-, he has not produced any evidence in supportof the same and the employer is also not examined toprove the salary and wages of the labour were taken intoconsideration and there is no error in the order of theAssistant Commissioner of Labour. He further submittedthat as per the medical evidence, there was only partialdisability which was assessed at 30% and the same wastaken by the Assistant Commissioner of Labour andtherefore, there is no error or wrong in the findings of theAssistant Commissioner of Labour which requiremodification and that the appeal is devoid of merits.

Now the point that would arise for my considerationin this appeal is whether the order impugned is legal,correct and proper?POINT:

There is no dispute with regard to accident that tookplace on 25-3-1998. There is also no dispute with regardto jural. Relationship of employee and employer betweenappellant and first respondent herein. According toappellant, he was working as labourer and the lorrybelongs to the first respondent herein and he was gettinga salary of Rs.3,000/- per month. To prove the same, theappellant relied on his evidence only. He has not produced any proof to show that he was getting a salaryof Rs.3,000/- per month from first respondent herein.

In the cross-examination, he deposed that he ismonthly labourer working under the first respondentherein. He denied the suggestion that R.1 was not payingRs.3,000/- as salary. He stated that he is not a monthlylabourer working under R.2.

There is absolutely no other evidence to prove theincome of the appellant. As there is no positive evidencewith regard to the salary or income of the injured, lowerauthority has fixed his monthly income on the basis of hisprofession. Assistant Commissioner of labour tookRs.1800/- as salary of labour in the year 1998. Thoughappellant contended that the Assistant Commissioner ofLabour was wrong in taking Rs.1800/- per month, hefailed to produce any material to show that the charges oflabourer were more than Rs.1800/- per month as on thedate of accident.

On a scrutiny of material, I do not find any wrong inthe order of the Assistant Commissioner of labour intaking Rs.1800/- per month as a probable income of theapplicant as a labourer.

The next objection of the appellant is that AssistantCommissioner of labour erred in not taking functionaldisability at 100%. Medical Officer who issued the Disability Certificate is examined as P.W.2 and hedeposed that during physical and clinical examination, heassessed the physical and functional disability of injury at30% and loss of earning capacity would also be 30%. Inthe cross-examination, he deposed that he is one of themember of the Medical Board which is competent toassess the medical disability. When the Medical Officerclearly deposed that functional disability is only 30%without any further material, the claim of the appellant for100% functional disability cannot be accepted and I donot find any wrong in the order of the Assistant Commissioner of Labour in taking disability at 30%. Therefore, the objection of appellant is not tenable.

Now the last contention of the advocate forappellant is that lower authority has not granted anyinterest though as per the Act, applicant is entitled forinterest.

As seen from the order, the lower authority has notgranted any interest. Honourable Supreme Court inSABERABIBI YAKUBBHAI SHAIKH AND OTHERSVersus NATIONAL INSRUANCE COMPANY LIMITED

AND OTHERS([[1]]) held that interest has to be grantedfrom the date of accident till the date of deposit.

So considering the same, applicant is entitled forinterest at 9% per annum from the date of accident till thedate of deposit on the compensation arrived by theAssistant Commissioner of Labour.

For these reasons, appeal is partly allowed grantinginterest at 9% p.a., on the awarded amount from the dateof accident i.e., 25-3-1998, till the date ofdeposit and the Insurance Company has to deposit thedifference amount by calculating the interest within 30days from the date of receipt of copy of this order.

As a sequel to the disposal of this revision, theMiscellaneous Petitions, if any, pending, shall standdismissed.

_______________________

JUSTICE S.RAVI

KUMAR

--Dated 31122014.

Dvs

HONOURABLE SRI JUSTICE S.RAVI KUMAR

CIVIL MISCELLANEOUS APPEAL No.1634 OF 2004--Dated 31122014

Dvs

[1](2014) 2 SCC 298